Saturday, 15 September 2012

Priveligium Fori - "Privilege of the forum"

This was about the ancient rights of certain classes of defendants to be tried in courts comprised of their peers. The Privilegium Fori is Latin for the "Privilege of the (legal) forum".

Typically, it is the application of the principle of trial by one's peers, either by such a jury or at least by a specific court belonging to a particular social segment or class, such as that a soldier might be tried by a court martial, or a cleric by a canonical or ecclesiastical court.

In Canon Law this term was used to decribe the right of clerical immunity from secular justice, later known as the Benefit of the Clergy. Members of the clergy, for instance, in some regions in Europe had the right to be tried by a special tribunal in civil and criminal cases to be held before an ecclesiastical judge.

The principle Priveligium Fori is the very question central to the issues raised by the Constitutions of Clarendon, which are themselves seen as a kind of Anglo-Saxon thinking reaching deep into the design of the English Constitution, which is later seen more obviously in the some of the clauses of Magna Carta. Some see Clarendon as the beginning where England was rescued from the vassalage of Rome. The issue in the Constitutions of Clarendon was how far English custom could evade the privilegium fori of the clergy.

...In the end, Gratian concluded that canon and public laws exempted clerics from civil judgment in both civil and criminal cases.

While both secular and ecclesiastical courts possessed their own sphere of influence, a privilegium fori exempted clerics from secular jurisdiction. This norm, according to Chodorow, derived from Paul’s admonition that a cleric, as a soldier of God, did not entangle himself in secular business (2 Tim. 2:4).

Gratian continued by stating that a cleric could not go before a civil judge, unless perhaps the bishop either did not want to decide a civil case or he stripped the cleric, deemed a criminal, of his honorary belt.

Relying on the words of Clement, Gratian refined his argument to distinguish between secular business and the business of secular men.

Clerics were prohibited from engaging in the business of secular men but not from engaging in secular matters. The business of clerics, whether civil or criminal, was the prerogative of ecclesiastical judgment.

It was common for clerics to manage ecclesiastical property and thus be involved in secular matters. A bishop, however, could judge such cases if they involved a cleric....